5.

Criminal Case Fact Memorandum

The following is a suggested organization of information in the
criminal case fact memorandum that has proved useful in antitrust case fact
memoranda. It is set out here for use, as appropriate, in cases recommended
by the United States Attorneys.

The memorandum should briefly summarize the highlights of the case,
summarize the evidence in context, and set forth the general framework of
the case. This discussion should include at least the following
elements:

The statutory provision(s) violated;

The judicial district in which the proposed indictment would be
returned or information filed, and, if appropriate, the expiration date of
the grand jury;

The proposed corporate and individual defendants, including the
company affiliation and position of individual defendants;

The duration of the conspiracy;

The product or service involved;

The geographic area involved;

A brief summary of the evidence indicating how the conspiracy was
formed or carried out and the evidence as to the involvement of each
defendant;

The amount of commerce affected on an annual basis; and

A reference to any potential defenses or other problems the USA
perceives, such as the statute of limitations, interstate commerce,
single/multiple conspiracy issues, etc.

If this is the first memorandum being sent by the USA to the
Antitrust Division concerning the antitrust violation, i.e., there was no
prior memo requesting preliminary inquiry authority or grand jury authority,
the memorandum should also indicate the factors that make it appropriate for
the antitrust violation to be prosecuted by the USA rather than the
Antitrust Division.

In a separate section, the fact memorandum may list the persons and
companies that were subjects of the investigation but are not being
recommended for indictment. The evidence against each such person or
company may be summarized, and the reasons why indictment is not being
recommended set forth, including such factors as the extent of cooperation,
relative culpability, age, state of health, personal or business hardship,
etc.

If applicable, the memorandum should analyze whether it would be
appropriate to bring a companion federal damage action or to seek
restitution. If a damage action or restitution is recommended, the
memorandum should describe in detail the damage theory and estimate the
amount of damages.